Helleins,  Fred,  B. ,  R. 
Lex  De  Imperio  Vespasian! 


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Classical  pbiloiogg. 


LEX  I)E  IMPERIO  VESPA8IAKL 


BY  FRED  B.  R.  HELLEMS 

PBOKHS80R  OF  LATIN  IN  THE  UNIVERSITY  OF  COLORADO 


CHICAGO 
SCOTT,  FORESMAN  AND  COMPANY 


LEIPZIG:  GUSTAV  FOCK 


PARIS:  H.  LE  SOUDIER 


Classical  philology 

H     W    JOHNSTON,  Ph.D.. 

.•:i«iiTY  or 


BT  De  Imperio  Vespasianl.  By  FRED  B.  R.  HSLMMS. 
Doctor  of  Philosophy  of  the  University  of  Chicago ; 
Professor  of  I^tin  in  the  University  of  Colorado,  50c. 


L\'  PRESS 

Contraction  in  the  Case  Forms  of  the  Latin  -to  and 

8,  and  idem.   By  EDOAE  H<- 
Doctor    of   Philosophy   of    the 

;aatructor    in    Latin   in    the 

Indiana  Univi-- 

The    (lenitive    of   Value    in    Lat 

r  of  Philosophy  of 

.versity;  Instructor  in  Latin  in  the  Uuive 
of  Cliicago 


LEX  DE  IMPERIO  VESPASIANI 


A  CONSIDERATION  OF  SOME  OF  THE  CON- 
STITUTIONAL ASPECTS  OF  THE 
PEINCIPATE  AT  ROME 


A  THESIS 

SUBMITTED  TO  THE   FACULTY  OF  THE  GRADUATE  SCHOOL 
OF  ARTS  AND  LITERATURE  OF 

THE    UNIVERSITY    OF    CHICAGO 
FOR    THE    DEGREE    OF    DOCTOR    OF    PHILOSOPHY 


BY 

y>-\ 
FRED  B:-' WHELLEMS 

SOMETIME  FELLOW  OF    UNIVERSITY  COLLEGE,   TORONTO;    SOMETIME  FELLOW  OF 
THE    UNIVERSITY    OF    CHICAGO 


CHICAGO 

SCOTT,  FORESMAN  AND  COMPANY 
1902 


COPYRIGHT,    1902,   BY 
SCOTT,   PORESMAN  AND  COMPANY 


TYPOGRAPHY  BY 
If  AKSH,  AITKKN  A  CURTIS  COMPANY 


LEX   DE   IMPERIO   YESPASIANI 


The  so-called  Lex  de  Imperio  is  inscribed  on  a  large  bronze 
tablet  now  in  the  Capitoline  museum  at  Kome.  Of  its  history 
nothing  definite1  is  known  until  the  fourteenth  century,  when  it 
was  set  up  by  Cola  di  Bienzi8  in  the  wall  of  St.  John  Lateran. 
Thence  it  was  transferred  to  the  Capitol  in  1576  by  Gregory 
XIII,  and  its  present  home  was  assigned  it  by  Clement  XII.3 

The  text*  may  be  found  in  convenient  form  in  C. .  I.  L.  VI, 
930;  Eushforth,  Latin  Historical  Inscriptions,  70;  Brans 
Fontes  luris  Romani,  p.  128;  Orelli-Henzen,  I,  p.  567;  Wil- 
manns,  917. 

I 

foedusve  cum  quibus  volet  facere  liceat,  ita  uti  licuit  divo 
Aug(usto),  |  Ti(berio)  Inlio  Caesari  Aug(usto)  Tiberioque 
Claudio  Caesari  Aug(usto)  Germanico; 

1  For  a  discussion  of  the  question  whether  the  inscription  was  known  to  the 
scholars  of  the  12th  century,  see  Cantarelli,  La  Lex  de  Imperio  Vespasiani,  Bulletino 
comunale,  1890,  202  seq. 

4  The  record  of  this  and  also  of  the  use  made  of  the  document  by  the  archaeol- 
ogiziug  revolutionary  is  found  in  a  passage  of  the  contemporary  Vita  Anonyma 
(Mur.  Antiq.  Ital.  vol.  Ill,  405,  or  Vita  scritta  da  incerto  autore  nel  secolo  XIV, 
ed.  Re,  26  seq.)  and  a  letter  of  Rienzi  himself,  written  in  1350  (Epistolario  di  Cola 
di  Rienzo,  ed.  a  cura  di  A.  Gabrielli,  105).  According  to  this  evidence— and  I  see 
no  adequate  reason  for  distrusting  it  when  one  keeps  in  mind  the  political  situation 
of  the  day— the  inscription  had  been  concealed  by  Boniface  VIII,  and  was  brought 
to  light  by  Rienzi.  It  was  then  used  by  him  in  a  "  bello  sermone  vulgare"  delivered 
in  St.  John  Lateran  before  he  entered  upon  his  tribunate  in  1347.  Apparently  he 
interpreted  the  terms  of  the  Lex  to  the  people,  emphasizing  the  fact  that  the 
emperor  received  his  investiture  of  power  from  the  people.  Cf.  Cantarelli,  1.  c., 
194  seq.  and  205  seq. 

3  Henzen's  description  under  C.I.L.  VI,  930,  where  is  also  given  an  exhaustive 
list  of  references  for  the  earlier  literature  on  the  Lex.    Rein,  under  Lex  Regia  in 
Pauly's  Encyclopadie,  and  Cramer,  Vespasian,  published  at  Jena,  1785,  also  have 
many  references. 

4  There  have  been  no  doubts  as  to  the  genuineness  of  the  inscription  since  the 
appearance  of  Gravina's  De  Ortu  et  Progressu  luris  Civilis  in  1758. 

3 


History  of 
the  inscrip- 
tion. 


Convenient 
references 
for  the  text. 


Of  making 
treaties 


Ricnzt  and  the 
inscription. 


LEX  DE  IMPERIO  VESPASIANI 


Of  convoking 
ordinary 
meeting*  of 
the  senate 
and  proceed- 
ing  therein. 


Of  commen- 
dation of 
candidates. 


Qf  extending 
the  pomerium. 


Of  doing  what- 
ever he  Khali 
think  in. .in  to 
primate  the 
welfare  of  the 
state,  etc. 


Of  exemption 
from  certain 
tawn  and 
plebiscites. 


Ratification  of 
previous  acts. 


II.  utique  ei  senatum  habere,  relationem  facere,  remittere, 
senatus  |  consults     per     relationem     discessionemque     facere 
liceat,  |  ita  uti  licuit  divo  Aug  (usto),  Ti(berio)  lulio  Caesari 
Ang(usto),  Ti(berio)  Claudio  Caesari  [  Augusto  Germanico; 

III.  utique,  cum  ex  voluntate  auctoritateve  iussu  mandatuve 
eius  |  praesenteve    eo  senatus  habebitur,  omnium    rerum   ius 
perinde  |  habeatur,  servetur,  ac  si  e  lege  senatus  edictus  esset 
habereturqne; 

IV.  utiqne,     quos     magistratum,     potestatem,     imperium 
curationemve  |  cuius  rei  petentes  senatui  populoque  Romano 
commendaverit,  |  quibusque     suffragationem     suam    dederit, 
promiserit,   eorum  |  comitis    quibusque    extra    ordinem    ratio 
habeatur ; 

V.  utique  ei  fines   pomerii   proferre,  promovere,  cum  ex 
re  publica  |  censebit  esse,  liceat,  ita  uti  licuit  Ti(berio)  Claudio 
Caesari  Aug(usto)  |  Germanico; 

VI.  utique,    quaecunque    ex   usu   rei    publicae,    maiestate 
divinarum,  |  huma[na]rum,  publicarum  privatarumque  rerum 
esse  e  (sic)  \  censebit,  ei  agere,  facere  ius  potestasque  sit,  ita  uti 
divo  Aug(usto),  |  Tiberioque  lulio  Caesari  Aug  (usto)  Tiberioque 
Claudio  Caesari  |  Aug  (usto)  Germanico  fuit; 

VII.  utique,  quibus  legibus  plebeive  scitis  scriptum  fuit  ne 
divus     Aug(ustus),  |  Tiberiusve     lulius     Caesar    Aug(ustus) 
Tiberiusque  Claudius  Caesar  Aug(ustus)  |  Germanicus  teneren- 
tur,  iis  legibus  plebisque  scitis  Imp(erator)1  Caesar  |  Vespasianus 
solutus    sit,    quaeque     ex     quaque    lege,    rogatione   |   divum 
Aug(ustum),    Tiberiumve     lulium      Caesarem     Aug(ustum) 
Tiberiumve  |  Claudium    Caesarem    Aug(ustum)    Germanicum 
facere   oportuit,  |  ea  omnia  Imp(eratori)    Caesari    Vespasiano 
Aug  (usto)  facere  liceat; 

VIII.  utique,  quae  ante  hanc  legem  rogatam  acta,  gesta,  | 
decreta,   imperata    ab   Imperatore    Caesare    Vespasiano    Aug- 
(usto),  |  iussu    mandatuve   eius   a    quoque    sunt,  ea    perinde 
iusta  rataq(ue)  |  sint,  ac  si  populi  plebisve  iussu  acta  essent. 


th 


iseLawty  "f    P^bisve  scita, 


SANCTIO 

huiusce  legis  ergo  adversus  leges,  rogationes, 
senatusve  consnlta  fecit,  f ecerit,  sive,  quod  eum 


1  The  transcription  should  be  Imperator  rather  than  imperator.    The  use  of 
Imperator  in  relation  to  Vespasian  will  come  up  for  discussion  later.    See  23. 

4 


LEX  DE  IMPERIO  VESPASIANI  5 

ex  lege,  rogatione,  |  plebisve  scito,  s(enatus)ve  c(onsulto)  facere 
oportebit,  non  fecerit  huius  legis  |  ergo,  id  ei  ne  fraud!  esto, 
neve  quit  ob  earn  rem  populo  dare  debeto,  |  neve  cui  de  ea  re 
actio  neve  iudicatio  esto,  neve  quis  de  ea  re  apud  |  [sje1  agi 
sinito. 

The  following  translation  is  given  without  comment;   the  Translation 
points  that  it  necessarily  leaves  unsettled  will  come  up  for  dis-  comment, 
cussion  under  the  separate  provisions. 

I.  [It  is   hereby   enacted]    that  it    shall    be    lawful    for  OfmaUng 
[Imperator  Caesar  Vespasian  Augustus]  to 

and  to  conclude  treaties  with  whomsoever  he  shall  wish,  as  it 
was  lawful  for  the  deified  Augustus,  for  Tiberius  Julius  Caesar 
Augustus  and  for  Tiberius  Claudius  Caesar  Augustus  Ger- 
manicus ; 

II.  And  that  it  shall  be  lawful  for  him  to  convoke  the  Of  convoking 

„        ,.  .  .          ordinary  meet 

senate,  to  propose  a  matter  for  discussion,  to  transmit  to  it  a  ings  of  the 
question  submitted  to  him  and  to  procure  a  decree  of  the  proceeding 
senate  by  the  proposal  of  a  bill  and  a  division  of  the  house; 

III.  And  that,  when  a  meeting  of  the  senate  shall  be  held  in  Of  holding  ex- 
accordance  with  his  pleasure   or  authority,  by  his   order  or  meetings  of 
injunction,  or  in  his  presence,  all  proceedings  at  such  a  meeting 

shall  be  accounted  valid  and  observance  shall  be  due  them,  just 
as  if  the  meeting  of  the  senate  had  been  announced  and  held  in 
accordance  with  ordinary  procedure ; 

IV.  And  that,   whatsoever    candidates  for    office,   power,   Qfcommen- 

'    r  '    dationof 

authority,  or  charge  of  any  matter  he  shall  have  recommended  candidates. 
to  the  Roman  senate  and  people,  and  to  whomsoever  he  shall 
have  given  or  promised  his  support,  account  shall  be  taken 
extraordinarily  of  them  at  any  comitia  whatsoever; 

V.  And  that  it  shall  be  lawful  for  him  to  advance  and  pro-  pfextendiw 

r          thepomerium. 

mote  the  boundaries  of  the  pomerium  whenever  he  shall  think 
it  advantageous  for  the  state,  as  it  was  lawful  for  Tiberius 
Claudius  Caesar  Augustus  Germanicus; 

VI.  And  that,  whatsoever  he  shall  think  likely  to  promote  of  doing  what- 
the  welfare  of  the  state,  the  dignity  of  sacred  and  profane,  pub-  think  itheiy  to 
lie  and  private,  interests,  he  shall  have  full  right  and  authority  Welfare  of  the 
to  do  and  execute ;  as  had  the  deified  Augustus,  Tiberius  Julius 

1  About  the  reading  '««'  there  is,  of   course,  no  doubt;  it  was  given  as  early 
as  Smetius  and  Panvinius. 

5 


LEX  DE  IMPERIO  VESPASIANI 


Of  exemption 
from  certain 
laws  and 
plebiscites. 


Ratification 
of  previous 
acu. 


Formal 
declaration 
of  the  superi- 
ority of  this 
law. 


The  separate 
CtOHttt. 


First  clause 
in  it*  entirety 
probably  con- 
ferred supreme 
authority  in 
matters  of  war 
and  peace. 

Some 

illtcwuioni  of 
the  Lex. 


Caesar  Augustus,  and  Tiberius  Claudius  Caesar  Augustus  Ger- 
manicus ; 

VII.  And    that,    whatsoever    laws    and    plebiscites    were 
declared  not  to  be  binding  on  the  deified  Augustus,  Tiberius 
Julius  Caesar  Augustus,  or  Tiberius  Claudius  Caesar  Augustus 
Germanicns,  from  these  laws  and  plebiscites  Imperator  Caesar 
Vespasian  shall  be  exempt,  and  that,  whatsoever  things  it  was 
allowed  the  deified  Augustus,  or  Tiberius  Julius  Caesar  Augus- 
tus, or  Tiberius  Claudius  Caesar  Augustus  Germanicus  to  do  by 
any  law  or  bill,  it  shall  be  lawful  for  Imperator  Caesar  Vespasian 
Augustus  to  do  all  those  things; 

VIII.  And    that,    whatsoever    has    been    done,    executed, 
decreed,  or  commanded  by  Imperator  Caesar  Vespasian  Augus- 
tus, or  by  any  person  on  his  order  or  injunction,  before  the 
passage  of  this  law,  shall  be  legal  and  valid,  just  as  if  it  had 
been  done  by  the  people  or  plebs. 

Sanction 

IX.  If  any  person  has  done  or  shall  have  done  anything  on 
account  of  this  law  contrary  to  the  provisions  of  any  law,  bill, 
plebiscite,  or  decree  cf  the  senate,  or  if,  on  account  of  this  law, 
he  shall  have  left  undone  what,  in  accordance  with  any  law, 
bill,  plebiscite,  or  decree  of  the  senate,  he  should  do,  it  shall 
not  be  a  crime  on  his  part,  nor  shall  he  be  liable  to  pay  any 
penalty  to  the  people  on  that  account,  nor  shall  any  person  have 
the  right  of  entering  suit  or  proceeding  judicially  on  that 
ground,  nor  shall  any  person  allow  suit  concerning  it  to  be 
carried  on  before  him. 

It  has  seemed  to  me  better  to  consider  first  the  separate 
clauses  of  the  law,  noting  with  some  care  the  prerogatives  men- 
tioned, and  only  then  to  venture  on  a  consideration  of  its  gen- 
eral character.1 

The  first  clause  in  its  remains  confers  on  Vespasian  the 
power  of  making  treaties  with  whomsoever  he  shall  wish.  In  its 
entirety  it  almost  certainly  conferred  supreme  power  in  what  we 

>  Before  proceeding  to  a  discussion  of  the  law,  I  should  mention  some  of  the 
best  and  most  accessible  treatments  to  which  references  are  most  commonly  made: 
Pelham,  Journal  of  Philology,  XVII,  27  seq. ;  Willems,  Droit  public  romain,  413 
seq. ;  Mommsen,  Staatsrecht,  II,  876  seq.  et  al. ;  Karlowa,  Romlsche  Rechtsgeschichte, 
I,  494  seq. ;  Mlspoulet,  Les  institutions  politlques  des  Remains,  I,  374  seq.,  with  a 
good  translation;  and  particularly  Cantarelli,  Bulletino  comunale,  1890,  194  seq. 
and  235  seq. 

6 


LEX  DE  IMPERIO  VESPASIANI  7 

roughly  call  affairs  of  war  and  peace ;  for  it  is  expressly  stated 
at  the  end  of  the  clause  that  the  authority  conferred  is  to  place 
Vespasian  in  the  same  position  that  Augustus1  had  held  with  ref- 
erence to  the  same  issues,  and  the  position  held  by  Augustus  we 
know  in  at  least  a  general  way  from  two  much  quoted  passages. 
Strabo,2  speaking  of  the  division  of  the  Eoman  provinces,  says: 
"For  when  the  senate  committed  to  him  (Augustus)  the  head- 
ship of  the  empire  and  made  him  supreme  over  war  and  peace 
during  his  lifetime,  he  made  a  division,  etc."  So  Dio  Cassius,3 
speaking  of  the  position  of  the  emperors:  "From  these  names 
they  get  the  power  to  ...  and  to  begin  war  and  conclude 
peace." 

Would  such  a  power  be  an  absolutely  unlimited  one,  or 
would  it  be  one  that  could  be  reconciled  with  the  constitutional 
powers  of  the  consul,  strictly  considered  or  interpreted  with 
some  latitude?  With  the  history  of  the  competent  treaty- 
making  power  at  Kome4  before  the  time  of  Sulla  we  need  not 
seriously  concern  ourselves;  but  we  should  remember  that  it 
constitutionally  belongs  to  the  senate  and  popular  assemblies. 
Neither  is  it  necessary  to  consider  the  question  of  the  relative 
weight  of  the  senate  and  people,5  further  than  to  keep  clearly 
in  mind  the  power  of  the  senate  after  the  supremacy  of  Sulla. 
But,  facing  in  a  way  this  authority  at  home,  there  must  always 
be  a  certain  power  in  the  hands  of  the  military  commander-in- 
chief.  When  it  came  to  the  matter  of  a  foreign  war,  with 
immense  distances  between  the  operating  army  and  the  legis- 
lative body,  there  could  be  no  doubt  as  to  the  desirability  of 
having  practically'plenary  powers  in  the  hands  of  the  leader  of 
the  army.  And  it  is  with  reference  to  the  military  side  of  the 
work  of  Augustus  that  such  a  power  must  have  been  conferred. 

1  The  reason  for  the  omission  of  the  names  of  the  intervening  emperors,  to  Reason  for  the 
whose  powers  no  reference  is  made,  is  rather  obvious.    Galba,  Otho,  and  Vitellius  omission  of 
with  their  ephemeral  reigns  were  really  never  settled  in  the  supreme  authority ;  tain  emperors. 
Nero  had  been  legally  declared  damnatae  memoriae;  and  Caligula  had  been  prac- 
tically so  treated,  although  the  intervention  of  Claudius  had  rescued  his  mad  prede- 
cessor from  formal  dishonoring  at  the  hands  of  the  senate.  Mommsen,  Staatsrecht, 

II,  1129.  Dio  Cassius  LX,  4,  5:  rijs  yepowias  dTijuwcrai  TOP  Td'iov  efleATjeraoT)?  v//»;0icr0j)i<ai 
fiev  avrbs  cKuAvo-cp,  iSia  Se  T«  etitoVas  avrou  VVKTOS  a^acra?  ^aricrt  K.  T.  A. 

2  StrabO  XVII,  3,  25:  Ai    &'  fcrcpguu  5iT)'p*)''Tat  aAAore    /ley    dAAco;,    ev  Se  T<j>  irapoi'Ti 
<us  Kaicrap  6    Se/ScuTTOS   SieTafep.    firei&rf  yap  rj  irarpis  tirirpf^/fv    aural    rr\v    Ttpouratria-v  rijs 
tj-ye/uopta?,  icai  iroAe'/nov  (tat  eipiji/i)?  Korean)  Kiipios  Sid  £t'ou,  6i\a  SteiAe  K.  T.  A. 

3  Dio  CassiUS   LJII,  17,  5:    Kal  ex  pifv  rovriav  rliiv  bvonariav  ,  .  .  iroAe/xov?  T«  avaiptl- 
<70ai  (cal  t'if>rjvt\v  trircVo'ea'dat     .     .     .     Aa/t/Sacovaiv  K.  r.  A. 

4  See  Mommsen,  Staatsrecht,  I,  246  seq. ;  in,  343. 

5  Ibid.,  Ill,  1170. 

7 


LEX  DE  IMPERIO  VESPASIANI 


Thctte&md 
clause  con- 
tains four 


The  first,  of 

iiiMing 

teiMte. 


At  the  famous  partition  of  the  provinces,  already  referred  to, 
between  Augustus  and  the  senate,  it  must  have  been  clear  that  if 
he  was  to  face  the  problems  involved  in  the  administration  of 
every  province  likely  to  be  a  scene  of  disturbance,  if  he  was  to 
accomplish  any  permanent  results,  he  must  be  entirely  untram- 
meled  in  his  decisions  as  to  when  he  should  send  the  sword  and 
when  the  olive  branch.  To  meet  these  needs  authority  was 
delegated  to  him — as  it  might  constitutionally  be  delegated — 
by  the  senate  and  people.  Constitutionally  this  would  naturally 
be  connected  with  the  imperium  consulare1  or  proconsular,  as 
Pelham  has  pointed  out. 

The  second8  clause  conveys  four  distinct  rights  touching 
Vespasian's  dealings  with  the  senate. 

The  first  right,  senatum  habere,  is  usually  regarded  as  a 
special  one,  entirely  apart  from  the  right  of  holding  a  meeting 
of  the  senate  implied  in  the  tribunicia  potestas.  It  is  then 
identified  with  the  right  conferred  on  Augustus  in  22  B.C., 
and  reported  by  Dio  Cassius3  in  the  words-  "So  that  he 
received  the  power  to  convoke  the  senate  whenever  he  should 
wish."  By  this,  according  to  Pelham,*  Augustus  was  made 
independent  of  the  old  established  order  of  precedence,  which 
gave  the  right  in  the  first  instance  to  the  consuls  and  praetors, 
and  only  after  them  to  the  tribunes.  Mommsen5  understands 
Dio  Cassius  to  mean  that  the  "power  of  convoking  the  senate 
under  special  circumstances  was  conferred  on  Augustus  as  a 
special  right,"  and  believes  that  this  then  passed  on  to  his  suc- 
cessors. He  and  Pelham  are  agreed  in  identifying  the  power 
mentioned  by  Dio  Cassius  with  the  senatum  habere  of  the 
Lex.  They  are  agreed,  furthermore,  that  the  tribunicia 
potestas  implied  the  power  of  convoking  the  senate,  but  in  the 
old  order  of  precedence.  I  would  note  that  it  is  by  no  means 
certain  that  the  tribune's  right  is  not  practically  supreme  even 

>I  use  throughout  the  expression  " proconsular  imperium,"  although  I  do  so 
without  emphasis.  The  gulf  between'  Mommsen's  " proconsular 'e  imperium"  and 
Pelham's  "  consulare  imperium  held  pro  consuls  "  exists  mainly  in  perspective,  for 
both  are  thinking  of  the  same  powers  conferred. 

5  The  second  and  third  clauses  might,  perhaps,  have  been  better  taken  as  parts 
of  one  clause;  but  the  division  here  followed  is  very  convenient.  It  should  be  men- 
tioned, perhaps,  that  a  discussion  of  these  clauses  by  the  present  writer  has  ap- 
peared in  the  Journal  of  Philology,  L.V  (1901),  122  seq. 

'  Dio  Cassius,  LIV,  3,  3  :  eiri  ovv  TOUTOIS  UTTO  fiec  rtav  eu  <f>povovvr<av  iiryveiTo,  tatrre  itai 
TO  T7)»>  f}ov\r)v  a.0poi£(iv,  oeraKis  at>  i0€\TJ<rj)  Aa/3eii>  K.  r.  A. 

«Journ.  of  PhUr^VnT42i          •"Mommsen,  Staatsrecht,  II,  896-7. 

8 


LEX    DE  IMPERIO  VESPASIANI  9 

if  one  gives  due  weight  to  the  old  order  of  precedence,  for  the 
tribune's  convoking  can  not  be  hindered  by  the  intercession  of  a 
patrician  magistrate.  Furthermore,  the  expression  before  us  is 
senatum  habere  without  any  qualifying  words. 

The  second  right  is  that  of  laying  a  measure  before  the  The  second 
house.      By  Mommsen1  the   relationem  facere  of  this   clause  posing  a  meas 

i  wre/or  consid- 

seems  to  have  been  first  understood  to  mean  the  proposal  of  a  eraiion  by  the 
measure  in  writing,  as  opposed  to  the  regular  oral  proposal ;  but 
he  subsequently  concludes  that  his  previous  position  was  ques- 
tionable to  this  extent:  "In  this  clause  senatum  habere" — 
which  of  course  is  used  of  presiding  in,  as  well  as  of  convoking 
the  senate — "appears  to  be  the  more  general  expression,  and 
relationem  facere  only  to  be  placed  for  referre  in  order  to  offer 
something  to  which  the  following  relationem  remittere  might 
be  appended."  His  reluctance  to  identify  relationem  facere 
with  the  common  referre  is  due  to  the  assumption  he  has  made 
with  reference  to  a  passage  of  Dio  Cassius.2  The  passage  runs: 

17  yepovtna  .  .  .  e^^titraTO,  /cat  xprjfjuiTi&iv  aurw  Tre/ot  evos  Ttvos 
OTOU  av  e6tXrja"rj  KO.$'  e/cacrr^v  flovXrjv,  KO.V  (JW]  VTTO.T every,  eStoKCV. 

Mommsen  assumes  that  ^^yuari^civ  meant  "to  propose  in  writing, ' ' 
and  a  difficulty  is  inevitable  if,  after  that  assumption,  one  iden- 
tifies the  privilege  mentioned  by  Dio  with  that  conferred 
by  the  Lex,  and  does  not  then  give  a  very  special  meaning 
to  relationem  facere.  Pelham8  is  sure  that  relationem  facere 
is  quite  synonymous  with  referre^  and  of  this  there  can  be 
little  doubt.  In  connection  with  this  he  considers  the  ius 
tertiae,  quartae,  guintae  relationis*  of  the  later  emperors,  and 
rejects  Mommsen 's  theory  of  a  written  as  opposed  to  an  oral 
proposal.  His  view  is  that  the  passage  in  Dio  recorded  the 
restoration  to  Augustus  of  the  right  of  priority  of  reference 
attached  to  the  office  of  consul,  with  the  proviso,  however,  that 
this  priority  was  not  to  extend  to  all  the  relationes  he  might 
make,  but  only  to  one.  He  then  identifies  the  privilege  of  Dio 
Cassius  and  the  provision  of  the  Lex.  Like  Mommsen,  but 
with  the  same  difference  as  here,  he  concludes  that  in  the 
cases  cited  from  the  later  emperors  we  have  an  extension  of  the 


1  Mommsen,  Staatsrecht,  II,  899. 
«  Dio  Cassius  LIII,  32,  5. 
»  Journ.  of  Phil.  XVII,  39. 

«  Vit.  Pertin.  5,  6,  Sever!  Alexandri  1,  3,  Probi  12,  8. 

9 


10 


LEX  DE  IMPERIO  VESPASIANI 


"Relationem 

remittere." 


The  writer's 
view. 


privilege.  Cantarelli1  follows  Mispoulet*  in  his  view  that 
relationem  facere  is  equivalent  to  referre,  and  includes 
both  oral  and  written  propositions.  What  I  am  personally 
inclined  to  think  may  better  be  taken  up  in  connection  with  the 
following  clause. 

The  third  provision  has  been  the  victim  of  many  interpreta- 
tions. Karlowa3  understands  the  words  relationem  remittere 
as  meaning  "to  withcfraJw  a  matter  submitted  to  the  senate." 
Madvig*  has  practically  the  same  view,  and  Cantarelli5  accepts 
this  explanation.  Pick6  and  Mispoulet7  hold  other  views,  but 
they  have  been  indisputably  disposed  of  by  Cantarelli.8 
Mommsen9  takes  the  expression  to  refer  to  the  handing  over  to 
the  senate  by  the  emperor  of  a  matter  that  may  fall  within  the 
competence  of  that  body  but  has  come  before  him.  His  treat- 
ment has  the  merit  of  dealing  with  the  literary  evidence,  which 
I  append  in  a  note.10  It  will  be  noticed  that  these  passages 
refer  mostly  to  criminal  processes,  although  they  are  not 
numerous  enough  to  justify  a  limitation  to  that  field. 

But  of  the  growth  of  the  right  and  its  connection  with  the 
other  provisions  of  the  clause  I  believe  a  consistent  account  can 
be  given  on  only  one  basis,  viz :  the  whole  second  clause  defines 
the  rights  of  the  emperor  in  his  dealings  with  the  senate  as 
connected  with  the  tribunicia  potestas.  This  will  cover  the 
senatum  habere  of  the  first  provision,  the  relationem  facere 


» Cantarelli,  I.e.  196-7. 

>  Mispoulet,  op.  c.  I,  265. 

»  Karlowa,  Geschichte  des  rom.  Rechts,  I,  498. 

<Madvig,  Die<Verfassung  und  Verwaltung  des  rbm.  Staates,  I,  538. 

4  Cantarelli,  l.c.  197-9. 

•  B.  Pick,  De  Senatus  Consultis  Romanorum,  8,  n.  4. 
'  Mispoulet,  op.c.  I,  265. 

•  Cantarelli,  1.  c.,  196  seq. 

•  Staatsrecbt  II,  896-900. 

10  Pliny,  Ep.,  4,  9,  1:  lulius  Bassus  .  .  .  accusatus  est  sub  Vespasiano  a 
privatis  duobus;  ad  senatum  remissus,  diu  pependit,  tandem  absolutus  vindi- 
catusque. 

Ibid.,  9,  13,  22:  Publicius  Certus  has  been  attacked  in  the  senate  on  serious 
charges,  and  the  consuls  have  apparently  been  instructed  to  institute  proceedings 
against  him  .  .  .  et  relationem  quidem  de  eo  Caesar  ad  senatum  non  remisit. 

Tac.,  An.,  3, 10:  Fulcinius  Trio  had  brought  charges  against  Piso  before  the 
consuls;  Tiberius  had  been  asked  to  conduct  the  investigation:— igitur  paucis 
familiarium  adhibit  is,  minas  accusantium  et  hincpreces  audit  iutegramquecausam 
ad  senatum  remlttit. 

Add  Tac.,  An.,  1,  8:  Conclamant  patres  corpus  ad  rogum  umeris  senatorum 
r> Triiilu m.  Remisit  Caesar  adroganti  moderatione,  where  remisit  probably  means 
"left  it  to  their  decision  on  a  second  consideration,"  Although  many  editors, 
Including  Furneaux,  note  ad  loc.,  hold  that  it  means  "excuse  them  from  the  duty." 

10 


LEX  DE  IMPERIO  VESPASIANI  11 

of  the  second,  and  the  arrangements  as  to  taking  a  vote  in 
the  fourth.  On  this  basis,  relationem  remitter -e  is  a  by  no 
means  difficult  expression  of  the  form  in  which  the  old  interces- 
sion of  the  tribune  has  come  to  be  conceived  of  with  relation  to 
the  emperor  and  his  dealing  with  measures  before  the  senate. 
He  may  either  drop  the  relatio  or  "send  it  back"  for  further 
consideration.  This  understands  remittere  in  a  sense  per- 
fectly consistent  with  the  passages  quoted.  Again,  it  gives  to 
the  provision  an  importance  that  justifies  its  appearance  with 
the  other  important  prerogatives  in  the  clause.  Furthermore, 
after  the  mention  of  the  right  to  propose  a  motion,  the  right  to 
veto  a  bill  or  return  it  for  discussion  would  very  naturally  fol- 
low. Finally,  the  fact  that  such  a  large  proportion  of  the  few 
uses  we  have  of  the  expression  in  contemporary  writers  referred 
to  criminal  cases  would  suggest  a  connection  with  the  tribu- 
nicia  potestas  and  its  power  of  intercession. 

The  fourth  proviso  covers  the  procuring  of  a  decree  of  the 
senate  on  a  division.  The  wording  raises  no  difficulty.  There  decreeb 
is  no  reference  to  the  two  ways  of  taking  a  vote  known  to  the 
Romans,1  that  is,  by  a  simple  and  literal  division  into  parts  of 
the  chamber,  or  by  actually  asking  for  the  individual  votes ;  the 
relatio  was  a  necessary  preliminary  to  any  decree.8 

This  right  is  also  held  to  have  been  exercised  by  the 
emperors  in  virtue  of  a  special  empowering  act,  although  it  is 
not  mentioned  by  Dio  Cassius.  It  really  brings  us  back  to  the  *jj%£i 
first  and  second  provisions  of  the  clause,  and  involves  the  same 
difficulties;  for,  of  course,  the  president  of  the  meeting  had 
full  power  to  proceed  to  a  division.  The  explanation  of  Pelham 

1  Mommsen,  Staatsrecht,  III,  983-4. 

Varro,  ap.  Aul.  Gell.  14,  7,  9:  .  .  .  senatus  consultum  fieri  duobus  modis:  On  the  turn  ways 
ant  per  discessionem,  si  consentiretur,  aut,  si  res  dubia  esset,  per  singulorum  ^detret^°n 
sententias  exquisitas.  Another  passage  in  Gellius  (14,  7, 12),  which  seems  to 
contradict  this,  runs:  Nam  Tuberonem  dicere  (Ateius  Capito)  ait,  nullum 
senatus  consultum  fieri  posse  non  discessione  facta,  quia  in  omnibus  sena- 
tus consultis  etiam  in  iis  quae  per  relationem  (mss.  elationem  &  lationem)  fierent 
discessio  esset  necessaria.  Mommsen  thinks  that  Gellius  would  not  involve  him- 
self in  a  contradiction,  and  that  he  wrote  perlatione,  or  better,  perrogatlone.  Such 
a  mistake,  however,  presents  strong  palaeographical  difficulties,  whereas  per  ela- 
tionem is  a  very  easy  mistake  for  per  relationem.  I  fancy,  rather,  that  Gellius  had 
not  followed  Tubero  closely,  and  that  the  latter  did  not  mean  by  his  per  relationem 
the  same  that  Varro  meant  by  his  per  singulorum  sententias  exquisitas,  but  was 
rather  speaking  of  votes  where  there  was  no  need  of  proceeding  even  to  a  discessio, 
and  was  pointing  out  that  even  there  the  discessio  theoretically  and  legally  took 
place.  /  / 

a  For  a  discussion  of  this  and  the  advocacy  of  a  different  opinion  see  Cantarelli 

In  the  Bulletino  comunale  for  1890,  196-201. 

11 


12 


LEX  DE  IMPERIO  VESPASIANI 


The  third 
clause,  legaliz- 
ing the  pro- 
ceeding* at 
extraordinary 
meeting*  of 
the  senate. 


is  along  the  line  of  his  general  theory,1  and  he  states  that 
probably  at  the  same  time — as  the  conferring  of  the  ius  sena- 
tum  liabendi — and  with  the  same  right  of  precedence  Augustus 
was  given  authority  senatus  consulta  facere.  Mommsen,  unfor- 
tunately, gives  no  explicit  statement  of  his  views  as  to  the 
reasons  for  such  provisions,  although  he  recognizes  them  as  con- 
ferred by  special  legislation.  He  does  state,8  indeed,  "It  can 
not  be  directly  proved  that  when  the  princeps  convoked  the 
senate  on  the  strength  of  his  special  competency  his  relationes 
took  precedence,  but,  considered  theoretically  or  practically,  it 
is  very  probable."  But  in  the  same  place  he  also  states  that 
the  tribunician  relationes  probably  had  legal  precedence  over 
those  of  the  patrician  magistracies;  by  implication  the  imperial 
relatio,  based  on  the  tribunicia  potestas,  would  need  no  special 
legislation  to  insure  its  precedence.  On  the  basis  of  the  expla- 
nation suggested  above  this  provision  presents  no  difficulty. 

The  third  clause  insures  the  validity  of  all  proceedings  at 
any  extraordinary  meeting  of  the  senate  convoked  at  Ves- 
pasian's pleasure.  This  much  is  certain;  but  are  we  to  say 
that  the  meetings  covered  by  this  clause  are  the  same  as  those 
authorized  by  the  preceding  clause?  This  I  regard  as  impos- 
sible. Even  if  the  provisions  of  the  former  did  not  refer  to 
rights  naturally  implied  in  the  tribunicia  potestas,  we  must 
assume  that  the  f  ramers  of  the  present  Lex  had  come  to  regard 
them  as  so  naturally  pertinent  to  the  imperial  power,  and  as  so 
naturally  applying  to  ordinary  meetings,  that  they  proceeded  to 
make  provisions  for  all  extraordinary  meetings  of  any  nature. 
If  one  keeps  before  one's  mind  the  very  formal  and  comprehen- 
sive expressions  of  clause  two,  I  do  not  see  how  he  can  conceive 
that  there  was  any  need  to  make  special  provision  for  the 
legality  of  the  proceedings  at  such  meetings  as  are  there  implied. 
Furthermore,  even  if  one  could  reconcile  the  expressions 
voluntate,  auctoritate,  iussu,  mandatu  with  the  provisions 
understood  in  the  ways  I  have  discussed,  it  could  only  be  the 
most  misplaced  ingenuity  to  proceed  to  the  same  task  with 
praesente  eo.  To  me  it  seems  much  more  probable,  even  cer- 
tain, that  clause  three  had  not  lost  sight  of  the  provisions  of 
clause  two — even  if  one  assumes  they  were  special,  as  I  can 
not — but  was  intended  to  provide  for  the  validity  of  any  method 

1  Pelham,  I.e.,  42  seq. 
»  Mommsen,  Staatsrecht,  II,  897,  note  5. 

12 


LEX  DE  IMPERIO  VESPASIANI  13 

of  holding  a  meeting  of  the  senate  adopted  at  the  convenience 
of  the  emperor,  by  providing  for  the  validity  of  all  transactions 
at  such  meetings. 

The  question  as  to  the  form  of  meeting  implied  in  the  words  on  the  form 
praesente  eo  is  attended  by  considerable  difficulty.     The  solu-  implied  in 

•*.         .  ,        ,         ,      T    ,1  .    ,  .  --I.  .    •      praeaenteeo 

tion  is  to  be  found,   I  think,  in  a  comparison  with  certain 

meetings  that  were  authorized  towards  the  close  of  the  reign  of 
Augustus.  At  the  time  when  Augustus  was  regulating  his 
general  relations  with  the  senate,  there  had  been  instituted1  a 
council  with  which  he  might  discuss  questions  which  were  then 
to  be  referred  to  a  full  senate.  This  earlier  council2  seems  to 
have  been  made  up  of  the  two  consuls,  or  the  holder  of  the 
other  consulate  when  Augustus  himself  held  one,  one  member 
from  each  of  the  other  magistracies,  and  fifteen  senators  elected 
by  lot  for  a  period  of  six  months.  Subsequently,  when  the 
pressure  of  old  age  prevented  his  frequent  attendance  at  meet- 
ings held  in  other  places  than  the  palace,  he  asked  for  a  new 
council.8  This  is  evidently  a  development  of  the  earlier  council,* 
although  it  legally  possesses  far  wider  powers.  This  new  council 
was  made  up  of  Tiberius,  the  acting  and  designate  consuls,  the 
grandsons  of  Augustus,  twenty  senators  chosen  for  a  year,  tak- 
ing the  place  of  the  fifteen  previously  chosen  for  six  months, 
and  such  other  persons  as  Augustus  might  care  to  introduce. 
When  this  body,  meeting  with  the  emperor,  was  duly  author- 


1  Suet.,  Aug.,  35:  Sibique  instituit  consilia  sortiri  semenstria,  cum  quibus 
de  negotiis  ad  frequentem  senatum  referendis  ante  tractaret.  Cuq,  Le  Conseil 
des  Empereurs,  has  a  long  discussion  on  the  subject,  which  is  reviewed  in 
Bursian's  Jahresbericht  XLIV,  p.  284. 

8  Dio  Cassius  LIII,  21,  4:  TO  Se  ii)  ir\fl<rrov  TOV<S  Tt  viroVovs  i)  TOV  vrrarov,  biroTt  ical 
avrbs  virarevoi,  KCLK  T(i>v  aAAcoi'  dp\6vT<av  eVa  Trap'  eKatmav,  etc  re  TOV  AoiTroO  TU>V  /SovAevTiov 
irATJflovs  TrevTfKOiiSeKa  rovs  icA»/p<o  Aa^dvras,  <rv/i/}ovAovs  es  ifdnrivov  jrapeAa/m/Sacei',  !a<nt  SC 
avTioy  KO.\  TOIS  aAAois  iratri  Koivovadai,  Tpoirov  Tivd  Ta  vofiodfTov^fva  voni£c<rda.i.  f<re<t>epe 
ftiv  yap  TLVO.  Ka.1  es  na<rav  ri}V  yfpovyiav  f}e\nov  /xeVroi  vofj.i£<av  elvai  fter'  6Ai'ya>i'  Ka.9' 
ri<rvxia.v  TO.  Tf  TrAeuu  <cal  TO.  jnet^ai  Trpoo-xoireicrflat,  TOUTO  re  STroi'ei  Kai  f(TTii>  ore  <cai  eSt'ieafc 

/X€T*   O.VT&V. 

3  Dio  Cassius  LVI,  28,   2-3:  (tol    <nifi/3ouAous    vnb  roG    Y^pws,    v<£*  ovirfp  ov&'    es  Tb 
jSovAevTTJpiov  en  TrATji/  <nra.vi.u3Ta.Ta.  <rvv e^ot'ra,  fiK.o<ri.v  eT7)<n'ovs  TJT^(ra.TO'     irporepov   yap  Ka.9' 
fKTov  nr/va.  irevTeKaiSexa.  irpo<reri0fTO.      KCU    7rpo<re\l>ri<i>t<r9r),  irav9'   ova  av  aiiry  /oi€Ta  re  TOV 
Ti/3epiou  (cat  jner'  fxeiviav,  T<av  Te  aei  viTrareuoi'Tcoi',  Kai  riav  es  TOUTO  a.rrooeSeiyiJ.ei'jiv.  T<av  Tt 
fyyovwv   avTOv  Ttav  TTOUJTUJV  SijAoi'OTt,  TU>V  TS  d\\iav  ocrovi  av  eKdUrroTe  7rpo<r7rapaAaj3]7,  ^ou- 
Aeuo^ieVo)  S6£ jj,  Kvpia,  cos  xal  irdtrj)  TJJ  yepovaiq  ope<racTa,  flvai. 

4  Mommsen,  Staatsrecht,  II,  902-3,  probably  from  his  desire  clearly  to  differ- 
entiate the  place  of  the  first  and  second  councils,  has  either  missed  or  disregarded 
the  very  natural  deduction  from  Dio  Cassius  that  this  new  body  is,  after  all,  merely 
a  development  of  the  older  consilium,  a  view  in  itself  very  probable  and  not  con- 
tradicted by  any  evidence. 

13 


14  LEX  DE  IMPERIO  VESPASIANI 

ized  to  pass  decrees  that  should  be  equally  binding  with  those 
passed  by  a  full  senate,  there  practically  comes  into  being  a 
smaller  senate,  really  depending  for  its  validity  on  nothing  else 
than  the  presence  of  the  emperor.  Some  such  smaller  senate, 
even  if  it  were  not  permanent,  must  have  been  at  times  a  great 
practical  convenience  to  the  ruler.  Whether  it  were  frequently 
utilized  or  not  its  utility  and  desirability  would  be  very  clear, 
and  it  is  to  some  such  body  that  the  words  praesente  eo  must 
apply.  The  position  and  authority  of  the  emperor  and  this 
body  would  naturally  be  defined  in  connection  with  his  relations 
to  the  regular  senate,  and  this  clause  is  very  closely  connected 
with  the  second. 

The  fourth  clause  is  unmistakable  in  its  force;  the  right  of 
the  formal         commendation  for  all  the  elective  offices  in  the  state  is  formally 

right  of  com-  •          a  -rr  •  •  i  ...  ,  . 

mendatton        conferred  on  Vespasian,  without  limitation.      The  history  of 

irithout  Umita-     .  J 

the  commendatio  up  to  the  reign  of  Nero1  is  so  well  agreed 
upon  that  I  practically  pass  it  over.  In  republican  times  the 
active  canvassing  for  a  candidate  might  naturally  be  called 
either  commendatio  or  suffragatio.  The  right  of  such  commen- 
datio or  suffragatio  belonged  alike  to  all,  and,  of  course,  had  no 
legal  status.  The  transformation  from  this  support  by  a  lead- 
ing citizen  into  the  legally  valid  commendation  by  the  princeps 
is  one  of  the  signs  of  the  transition  from  the  republic  to  the 
monarchy.  Such  a  right  of  commendation  was  conferred  on 
Augustus  in  27  B.C.  as  a  permanent  prerogative,  and  it  per- 
sisted in  this  or  an  enlarged  form  throughout  the  empire.  The 
only  office  not  included  in  the  right  as  exercised  up  to  the  time 
of  Nero  was  the  consulate,  as  Mommsen2  has  conclusively 
shown.  As  there  is  no  mention  of  precedents  in  our  clause 
there  must  be  some  feature  that  has  been  introduced  since 
Claudius,  and  this  is  probably  the  extension  of  the  right  to 
include  the  consuls.  When  did  this  extension  take  place? 
Mommsen  is  surely  right  in  saying  that  under  Tiberius  there 
was  no  formal  right  of  commendation  for  the  highest  magis- 
tracy; but  I  can  not  accept  his  view  that  at  the  close  of  Nero's 


1  See  any  of  the  better  works  on  the  history  of  the  period,  or  on  Roman  con- 
stitutional law;  best,  perhaps,  Mommsen,  Staatsrecht,  II,  921  ,seq.  Stobbe,  Philol- 
ogus,  XXVII,  88-112,  XXVIII,  648-700,  has  an  amazing  collection  of  material  on  the 
"candidati  Caetaris." 

a  Mommsen,  Staatsrecht,  II,  923  seq. 

14 


LEX  DE  IMPERIO  VESPASIANI  15 

reign  such  a  formal  right  appears,  and  that,  therefore,  the 
change  must  have  taken  place  before1  or  under  Nero.  The 
passages  of  Tacitus2  on  which  he  bases  his  theory  must  rather  The  passages 

r  ,  i  f        ,  . ,  .    ,  ,       ,         from  Tacitus 

refer  to   the   same   sort  of   arbitrary  appointment  as   he  has  on  which 

,      ., ,     ,  -.  ,,  .  TTT-j.1     ,1  •    i  ,-,       Mommsen 

admitted  under  other  prmcipes.     With  these  passages  rightly  bases  his  view. 
understood,  there  is  positively  no  evidence  for  the  appearance  of 
the  extended  right  before  the  passing  of  the  Lex ;  and  we  may,  Extension  of 
with  great  probability,  assign  it  to  the  beginning  of  Vespasian's  commendation 

/'  ,  .    *?  to  the  consul*™ 

reign,  when  the  anxiety  to  honor  the  new  emperor  might  easily  to  be  assigned 
appear  in  the  legalization  of  a  power  that  had  been  arrogated  to  ning  o/ve#pa- 
themselves  by  preceding  rulers.     From  this  time  on  the  consul- 
ship was  regularly  subject  to  the  commendatio. 

The  fifth  clause3  makes  it  clear  that  the  right  of  advancing  Fifth  clause 
the  pomerium*  now  attaches  definitely  to  the  office  of  the  prin-  advancing  the 
ceps.     The  enactment,  we  may  safely  infer,  was  first  passed  in  belamuto  the 
favor  of  Claudius,  who  extended  the  pomerinm  in  the  year  49.  l 
The  theory  of  Detlefsen,5  that  the  enactment  may  have  been 
intended  to  settle  the  constitutional  questions  as  to  the  circum- 
stances under  which  it  was  legal  to  enlarge  the  ideal  boundary, 
seems  to  me  rather  probable  inasmuch  as  the  enactment  was 
quite  along  the  line  of  the  archaeological  interest  for  which  also  important 
Claudius  is  so  noted.     The  clause  is  also  important  for  the  con-  Augustus°did 
elusive  evidence  it  throws  into  the  scales  against  the  statement 


1  It  assuredly  could  not  have  been  before.  If  the  right  had  been  given  to  Caligula 
it  would  have  been  given  to  Claudius,  and  if  it  had  been  given  to  Claudius  it  would 
have  appeared  in  the  Lex. 

3  Tac.,  Hist.,  I,  77:  Consul  cum  Titiano  fratre  in  kalendas  Martias  ipse  (Otho); 
proximos  menses  Verginio  destinat,  etc.  .  .  .  Ceteri  consulatus  ex  destinatione 
Neronis  aut  Galbae  mansere  etc. 

Ibid.,  II,  71:  Ut  (Vitellius)  Valenti  et  Caecinae'vacuos  honoris  menses  aperi- 
ret,  coartati  aliorum  consulatus,  dissimulatus  Marci  Maori  tamquam  Othonia- 
narum  partium  ducis;  et.ValeriumMarinumdestinatuma  Galba  consulem  distulit, 
etc.  .  .  .  Both  of  these  passages  refer  to  the  notorious  year  of  69,  which  saw  no 
fewer  than  fifteen  consuls. 

3  We  are  not  now  concerned  with  the  much  discussed  technical  difficulties 
pertaining  to  the  pomerium.    References  might  be  given  without  end,  but  the  fol- 
lowing will  afford  a  view  of  the  various  sides  of  the  question :  Mommsen,  Rbmische 
Forschungen,  II,  23-41,  and  the  "numerous   references   there  given;   Mommsen, 
Staatsrecht,  passim;  Detlefsen,  Das  Pomerium  Roms  und  die  Grenzen  Italiens, 
Hermes,  XXI,  497-562;   Nissen,  Beitrage  zum  romischen  Staatsrecht,  Strassburg, 
1885;  the  various  works  on  Roman  topography. 

4  Cantarelli,  1.  c.,  202-4,  has  a  very  interesting  discussion  about  the  misunder- 
standing of  pomerium,  and  the  question  as  to  whether  some  well-known  lines  In 
Italian  poetry  indicate  a  knowledge  of  our  inscription. 

*  Detlefsen,  Das  Pomerium  Roms  und  die  Grenzen  Italiens,  Hermes,  XXI,  50& 

15 


16 


LEX  DE  IMPERIO  VESPASIANI 


The  right  wa« 
utilized  by 
Vespasian 
in  76. 


Sixth  clause 
recognizes 
validity  of  all 
measures 
emanating 
from  the  em- 
peror.   Pre- 
sents no  diffi- 
outtftt. 


of  Tacitus,  Dio  Cassius,  and  the  biographer  of  Aurelian,1  that 
Augustus  also  enlarged  the  pomerium.  The  right  here  con- 
ferred was  utilized  by  Vespasian  in  the  year  75, 2  and  we  are 
fortunately  in  possession  of  two  of  the  boundary  stones  then  set 
up. 

The  sixth  clause  recognizes  the  validity  of  all  measures 
emanating  from  the  emperor.  With  it  we  come  to  the  part  of 
the  Lex  which  confronts  us  with  no  special  difficulties,  and 
gives  rise  to  no  such  variety  of  opinion  as  attaches  to  the  pre- 
ceding part.  In  this  clause  we  should  note  the  sweeping  char- 
acter of  the  provisions  and  should  recall  that  they  belong  to  the 
principate  from  its  establishment.  In  fact,  legislation  of  some 
such  spirit  must  have  been  found,  I  am  sure,  as  early  as  Sulla;3 
it  is  agreed  that  a  similar  enactment  was  issued  in  favor  of  the 
triumvirs,  and  Mommsen*  even  suggests  that  the  clause  was 
simply  transferred  from  the  bill  that  gave  the  triumvirs  their 
legal  status.6 


1  Tac.,  An.,  12,23;  Dio  Cassius  LV, 6;  Vita  Aureliani,21,ll.  The  evidence  contra  is 
this  inscription,  the  silence  of  the  Monutnentum  Ancyranum,  and  Seneca,  De  Brev- 
Vltae,  13,  8.  The  confusion  is  explained  by  Mommsen,  Staatsrecht,  II,  1035,  note  2, 
as  due  to  a  misunderstanding  of  the  changes  introduced  in  connection  with  the  divi- 
sion of  the  city  into  regions. 

1 C.  I.  L.  VI,  1232;  Bull.  com.  di  Roma,  1899,  p.  270.  Mommsen  has  surely  made 
a  mistake  of  one  year,  as  Mr.  Newton,  formerly  of  the  University  of  Colorado,  has 
shown.  The  date  is  between  March  1st  and  July  1st,  75  A.D;  Cornell  Studies  in 
Classical  Philology,  No.  XVI,  page  4.  This  extending  of  the  pomerium  is  discussed 
at  some  length  by  A.  Merlin,  Melanges  d'Arche'ologie  et  d'Histoire,  XXI,  1-2. 

•Padeletti,  Romische  Rechtsgeschichte,  707;  Mommsen,  Staatsrecht,  II,  662. 

4  Mommsen,  Staatsrecht,  II,  909,  quoting  Appianus  V,  75:  tlvai  xvpia.  6<ro  (Anto- 

niUS)  ejrpafe  Tt  (cat  Trpafeief. 

*  The  passages  bearing  upon  this  clause  are  so  well  known,  and  so  well  agreed 
upon,  that  I  merely  give  them  in  this  note  without  comment: 

Dio  CaSSiUS  LJII,  28,  2,  Of  Augustus:  ira<rT)«  O.VTOV  TTJS  riav  voiiiav  01/07*1)?  airrjAAafai', 
i>'',  iaenrep  eipijrat  ftot.  Koi  avroreAi)?  OPTIO?  KOI  avrOKpdriap  xai  cavroC  xai  run-  vo^iav,  vavra. 
Tc  6<7a  ^ouAoiro  TTOIOI'I),  Kal  TTiii'O'  o<ra  fir)  /SoiiAoiTO  fx>7  TrpaTTOi. 

Cf.  XLIV,  6,  1.  Of  Julius:  <col  irpoaeri  KOI  tv\t<r9ai  turep  ovToO  ^rjjaoo-ia  KO.T'  troy 
•xaaTOf,  TTJV  Tt  rv\r)v  avrou  bnvvvai,  Kai  TO  itpa\9i}<j6it.fva.  avrcu  irai/ra  xvpia.  e£eiv  evonurav. 

Suetonius,  Gaius,  14:  ius  arbitriumque  omnium  rerum  illi  permissum  est. 

Gaius  I,  5:  Constitutio  principis  est  quod  imperator  decreto  vel  edicto  vel 
eplstula  constituit :  nee  umquam  dubitatum  est,  quin  id  legis  vicem  obtineat,  cum 
ipse  imperator  per  legem  imperium  accipiat. 

Ulpian,  Digest,  I,  4,  1 :  Quod  principi  placuit,  legis  habet  vigorem,  utpote  cum 
lege  regia,  quae  de  imperio  eius  lata  est,  populus  ei  et  in  eum  omne  suum  imperium 
et  po  testa  tern  conferat:  quodcumque  igitur  imperator  per  epistulam  et  subscrip- 
tionem  statuit  vel  cognoscens  decrevit  vel  de  piano  interlocutus  est  vel  edicto  prae- 
cepit,  legem  esse  constat:  haec  sunt  quas  vulgo  const! tutiones  appellamus. 

On  the  legal  difference  between  constitutio  and  lex  see  Mommsen,  Staatsrecht, 
II,  909  seq.  Pomponius,  Digest,  I,  2,  2,  11-12:  constitute  principe  datum  est  ei  ius 
ut  quod  constituisset  ratum  esset. 

16 


LEX  DE  IMPERIO  VESPASIANI  17 

The  seventh  clause  in  its  first  section  passes  on  to  Vespasian  of  exemption 

from  the  law 

all  exemptions  from  legal  liability  that  had  been  conferred  by  by  special  en- 

.  J    actments. 

special  legislation  on  his  predecessors;  the  second  section  states 
the  positive  side.  They  shade  off  very  easily  into  each  other, 
and  the  thought  was  rather  on  their  complementing  each  other 
than  on  their  difference.  The  two  were  intended  primarily  to 
insure  the  emperor's  personal  position  with  regard  to  legal  pro- 
cedure.1 Naturally,  such  laws  as  they  cover  would  not  be 
important  enough  to  demand  separate  enumeration.  While  the  Theciame 

-..,,.,  .    ,\  ..   .         ..  .  ,     .        moreimpor- 

clause  looks  like  a  privilege,  it  is,  after  all,  more  important  for  taut  for  m 

.     .    .,  ,.  ,,        implication 

its  implication  that  the  emperor  is  normally  subordinate  to  the  that  the em- 

i«  T      i  i  ii  n  i  i-  peror  is  sub- 

law.  Accordingly,  we  have  the  well-known  exemptions  111  ardtnateto 
favor  of  Augustus3  and  Caligula.*  Asa  matter  of  fact,  how- 
ever, this  subordination  is  so  entirely  theoretical  that  subse- 
quently the  very  law  that  should  give  the  emperor  his 
constitutional  position  is  regarded  as  setting  him  above  the 
laws.5 

The  eighth  clause  ratifies  all  the  official  acts  of  Vespasian  in  Ratification  of 

,,..,,,  .,         ,  ,,.  .,,  .     actsof  Vespa- 

the  interval6  between  the    formulation  of  these   measures  at  stem  m  the 
Eome  and  his  salutation  by  the  soldiery  of  the  East  about  six  after  his  saiu- 

. .  ,         ,        tationby  the 

months    previous.      The    enumeration,    acta,  gesta,    decreta,  soldiers  of  the 

imperata    is    evidently   intended    to  be  completely  inclusive 

of   all  that  had  been  done  in  his  name,  and   I   do  not   fancy 

that  there  is   any  insistence    on   the    technical   differences.7 

Ada   might  technically   mean   all  magisterial   acts  outside  of 

the  military  sphere ;   gesta,  those  within  that   sphere ;    decreta 

1  Cf.  Mommsen,  Staatsrecht,  II,  750  seq.,  where  lie  quotes  in  Illustration  from 
Paulus,  Dig.  40, 1, 14, 1 :  imperator  cum  servum  manumittit  non  vindictam  imponit, 
sed  cum  voluit,  fit  liber  is  qui  manumittitur  ex  lege  Augusti. 

8  Rushforth,  87;  Mommsen,  Staatsrecht,  II,  750  seq. 

3  DiO  CaSSiUS  LVI,  33,  1 :   icaTaAe'AeurTo    fie    ev   aural?    TO.  /j.ev  Svo    /xepr;  TOV  K\rjpov  Tif 
Ttj3ept'u>,  TO  6e  AOITTOJ'  Trj  Aiovta,  <iis  Tive<!  X«'yov<rci'.      iva.  yap  ri  Kai  fKfivy  TJJS  ovcrias  aiiroO 
a>rd>'7)Tai,  irapa  TI)S  /SovXJjs  })T^<raTO    TOGOVTOV  avrfj  <cai  irapd  TOV  vo^ov  Ka.Ta.\nrelv  Svnjfljji'ai. 

4  DiO  CaSSiUS  LIX,  15,  1:  'ivayap&ri  KOI  irapa  TOV;  vo/xov?  Kai  K\ripovoiJ.elv  Ka.l8iaprjii.tLTa. 
TOiavTa  Aa/ti/3ai'ctv(oTifX)JTe  yvvatKa  TOTeye  nrJTfiraiSa.sflxf)&v>'a<TQai  &°Kfii  Soy/na  Tt  npoidfTO. 

6  This  is  evident  from  the  passages  referred  to  in  note  5,  18. 

•Cagnat,  Cours  d'Epigraphie  la  tine,  179;  Egbert,  Latin  Inscriptions,  129; 
Rushforth,  Latin  Historical  Inscriptions,  87;  Dio  Cassius  LXVI,  1,1. 

Tac.,  Histories,  IV,  3:  Isdem  diebus  (following  the  death  of  Vitellius,  Dec.  20th») 
.  .  At  Romae  senatus  cuncta  principibus  solita  Vespasiano  decernit. 

Suet.,  Vesp.,  6:  Ceterum divulgato  facto  (of  the  choice  made  by  the  army)  Tibe- 
rius Alexander,  praefectus  Aegypti,  primus  in  verba  Vespasiani  legiones  adegit 
Kalendis  luliis,  qui  principatus  dies  in  posterum  observatus  est.  ludaicus  deinde 
exercitus  V  Idus  lulias  apud  ipsum  iuravit. 

7  For  technical  differences  of  this  kind  cf.  Mommsen,  Staatsrecht,  II,  906  seq., 
Willems,  Le  droit  public  remain,  415. 

17 


18 


LEX  DE  IMPERIO  VESPASIANI 


Sanctio, 
formal  decla- 
ration of  the 
superiority  of 
thin  law. 


General  dte- 

en. •>•.-•!  i  i/i. 
Difficulties. 


should  refer  to  decisions  with  regard  to  criminal  or  civil  ques- 
tions; imperata  is,  of  course,  a  very  general  word.  In  the 
interval  mentioned  above  very  many  things1  had  been  done  by 
Vespasian  or  by  his  deputies,  and  the  formal  recognition  of 
their  validity  was  a  political  necessity.  Just  what  weight  the 
old  soldier  attached  to  this  recognition  is  shown  by  the  fact 
that  he  always  dated  his  accession  from  the  day  on  which  the 
eastern  soldiery  took  the  oath  in  his  name. 

The  sanctio  is  such  a  formal  declaration  as  we  might 
naturally  expect  at  the  conclusion  of  the  inscription.2  Its  sig- 
nificance lies  rather  in  the  evidence  it  affords  with  line  twenty- 
four,  that  we  have  before  us  a  Lex.  The  clauses  are 
regularly  in  the  form  of  a  decree  of  the  senate,  with  the  cus- 
tomary uti.  And,  indeed,  the  senate  is  commonly  mentioned 
as  conferring  the  powers,  owing  to  the  fact  that  the  proceedings 
therein  came  earlier  than  the  action  of  the  comitia,  and  that, 
while  the  senate  had  only  a  theoretical  power,  the  comitia 
seemed  a  still  emptier  form.  But  with  this  is  closely  connected 
the  question  of  the  general  character  of  the  measure,  and  to 
that  we  may  now  turn. 

The  whole  inscription,  then,  incorporated  the  legislation 
which  conferred  on  Vespasian  the  headship  of  the  Roman  state. 
But  the  moment  you  leave  this  general  statement  you  enter  on 
disputed  ground.  To  begin  with,  it  has  often  been  maintained 
that  this  was  a  piece  of  special  legislation  applying  to  Vespasian 
and  not  "an  example  of  a  general  law."  But  this  view  is  no 
longer  tenable,  and  we  may  simply  refer  to  the  convenient  dis- 
cussion in  Cantarelli's  second  article.8  Then,  what  did  the 
missing  part  of  the  inscription  contain?  Did  it  record  the  con- 
ferring of  the  tribunicia  potestas,  or  along  with  that  the  im- 
perium  proconsulare? 4  What  was  the  general  spirit  of  the  law? 
When  it  was  passed,  was  it  thought  of  as  conferring  a  number 
of  separate  prerogatives,  or  as  being  a  general  empowering  enact- 
ment? 

For  an  excellent  general  view  of  the  attitude  of  English 

1  Schiller,  Geschichte  der  rbmischen  Kaiserzelt,  II  Buch,  I  Kapltel;  Merivale, 
History  of  the  Romans  under  the  Empire,  Chap.  LVII. 

»  Mommsen,  Staatsrecht,  HI,  362.  Add  Cicero,  In  Verrem,  IV,  66,  Pro  Balbo,  14, 
De  Re  Publica,  31;  Papinian,  Digest,  XL VIII,  19,  41. 

»  Bull,  com.,  1890,  235  seq. 

4  For  the  term  coneulare  or  proconsular  imperium  see  Pelhain,  Journ.  of  Phil. 
XVII,  42  seq. 

18 


LEX  DE  IMPERIO  VESPASIANI  19 

scholars  on  the  question,  I  quote  from  Pelham:1  "But  as  to 
the  extent  of  ground  covered  by  this  law, 'and  as  to  its  bearing 
on  the  constitutional  position  of  the  emperor,  there  is  some 
difference  of  opinion.  The  theory  of  Merivale,2  that  it  was  a 
senatorial  decree  conferring  the  imperium,  which  represented 
the  ancient  law  of  the  curies,  and  preceded  the  decree  or 
decrees  conferring  special  prerogatives,  has  deservedly  found 
little  acceptance  with  recent  writers,  though  it  has  the 
authority  of  Niebuhr  in  its  favor.  For  our  purpose  the  issue 
lies  between  those  who,  with  Mommsen,  **  would  exclude  the 
consular e  imperium  from  the  operation  of  the  statute,  and 
those36"9  who  regard  it  as  a  general  empowering  law,  though  the 
latter,  as  a  rule,  fail  to  make  clear  its  relation  to  such  acts  as 
the  salutation  by  the  soldiery,  which,  in  a  sense,  qualified  the 
man  saluted  to  act  as  emperor."  The  difference  between 
Mommsen  and  Pelham,  again,  is  this.  The  former*  holds  that 
the  "imperium  oder  proTconsularische  Gewalt"  could  be  com- 
petently conferred  by  either  the  army  or  the  senate,  and  while  it 
gave  the  recipient  his  supreme  military  authority,  was  quite  dis- 
tinct from  the  Lex  which  gave  him  his  legal  status ;  that  apart 
from  his  military  position  the  power  of  the  princeps  may  be 
described  as  a  tribunicia  potestas,  regulated  and  extended  by 
special  clauses ;  and  that  this  became  translatitious,  of  course 
without  exclusion  of  changes  in  its  provisions.  Our  Lex  would 

1  Journal  of  Philology,  XVII,  p.  45 

*  History  of  the  Romans,  III,  468  (388  in  some  editions).  The  lex  curiata  was 
concerned  only  with  the  old  patrician  magistrates.  Nor  is  it  likely  that  the  ancient 
form  was  galvanized  into  life  in  order  to  confer  an  extraordinary  imperium,  and  still 
less  to  confer  the  tribunicia  potestas. 

3  a.  Mommsen,  Staatsrecht,  II,  877;  6  Madvig,  Verfassung,  I,  546;  c.  Walter, 
Gesch.  des  rom.  Rechts,  I,  333;  d.  Karlowa,  I,  493;  e.  Schiller,  in  MuUer's  Hand- 
biicher,  IV,  576,  /.  Hirschfeld,  Untersuch.,  I,  289;  g.  Mispoulet,  I,  379. 

One  might  multiply  authors  and  theories  without  end ;  but  it  would  be  to  little 
advantage.  The  most  striking  contribution  to  the  controversy  is  perhaps  that  of  J. 
Kaerst,  Alexander  der  Grosse  und  der  Hellenismus,  in  von  Sybel's  Historische 
Zeitschrift,  74,  N.F.  38(1895)  226  seq.  He  maintains  that  the  empire  in  its  inception, 
as  in  its  later  development,  is  under  the  influence  of  the  system  founded  by  the  great 
Macedonian;  Augustus  thus  becomes  the  founder  of  an  oriental  despotism.  This 
theory  is  important  only  as  showing  how  far  the  pendulum  might  swing  from  Momm- 
sen's  view  of  the  scrupulous  constitutional  observance  in  the  establishing  of  the 
principate.  Between  these  views  there  may  be  very  many,  and  there  are  as  many  as 
there  may  be.  Kaerst's  position  does  not,  of  course,  stand  examination,  and  he 
has  probably  taken  it  under  the  influence  of  his  subject.  For  a  dismissal  of  it,  see 
Gardthausen,  Augustus,  VI,  2,  288.  The  respect  in  which  Mommsen's  views  are 
widely  held  can  not  be  more  easily  shown  than  by  a  note  from  Schiller,  Geschichte 
der  romischen  Kaiserzeit,  1, 150:  "In  my  account  of  the  Augustan  constitution  I 
follow  Mommsen,  often  verbatim. " 

« Staatsrecht,  II,  840  seq. 

19 


20 


LEX  DE  IMPERIO  VESPASIANI 


Beginning  of 
the  Lex. 


Treating  the 
law  directly. 


The  writer's 
view. 


then  have  nothing  to  do  with  the  bestowal  of  the  imperium  pro- 
consiilare.  Pelham1  differs,  in  that  he  believes  that  from  the 
beginning  of  the  principate  the  consiilare  imperium  was  con- 
ferred with  the  tribunicia  potestas. 

Cantarelli,8  after  an  examination  of  the  current  views,  comes 
to  the  conclusion  that  the  Lex  was  not  intended  to  transmit  the 
principate,  but  to  determine  the  imperial  prerogatives.  This  is 
implied  in  Hirschfeld's3  theory  and  had  been  refuted  by 
Mommsen.  A  perusal  of  Cantarelli's  attempt  to  answer 
Mommsen's  arguments  will  convince  one  of  its  futility.  He 
rests  it  on  the  "clausola  transitoria,"  or  ratification  clause, 
which  he  maintains  makes  good  the  acts  of  Vespasian  between 
his  investiture  with  the  regular  imperium  by  the  senate,  and 
the  passing  of  the  present  law. 

After  the  publication  of  PelhamV  very  able  argument  I  do 
not  see  how  we  can  refuse  to  accept  the  view  that  the  law  con- 
ferred the  imperium  as  well  as  the  potestas.  Accordingly,  we 
may  rather  confidently  assert  that  our  Lex  began  with  some- 
thing like: 

Imp.  Vespasianus  imperio  proconsulari,  tribhnicia  potestate5 
esto,  ita  uti  divus  Augustus  (etc.)  fuit; 

Before  going  further  into  the  question  of  the  general  char- 
acter of  the  Law,  I  should  like  to  point  out  that  the  considera- 
tion of  the  constitutional  position  of  the  earlier  emperors  has 
very  often  begun  with  the  literary  evidence  for  Augustus,  and 
has  treated  the  Lex  de  Imperio  as  collateral.  This,  I  conceive, 
probably  led  to  the  misunderstanding  of  the  aspect  of  the  very 
important  provisions  of  clauses  one  and  two ;  and  the  misunder- 
standing was  often  repeated.  Mommsen  and  Pelham,  for 
instance,  both  insist  on  these  clauses  as  bundles  of  special 
prerogatives.  But,  as  has  been  seen,  I  do  not  believe  that  the 
clauses  can  be  so  explained.  Whatever  may  have  been  the  exact 
feeling  with  reference  to  Augustus,  there  can  be  little  doubt 
that  the  framers  of  our  Lex  conceived  of  the  measure  as  first 
conferring  the  dignities  above  referred  to,  both  the  imperium 

1  Journal  of  Philology,  XVII,  27,  seq. 
•Cantarelli,  I.e.,  242  seq. 
1  Hirschfeld,  I,  289. 

*  Journal  of  Philology,  XVII,  42,  seq.    The  only  thing  to  make  one  suspicious  is 
his  handling  of  the  use  of  imperium  in  the  later  juristic  writers;  but  his  conten- 
tion is  in  noway  invalidated  by  this  minor  slip. 

•  Cf .  Mommseu,  Staatsrecht,  II,  878,  not*  2. 

20 


LEX  DE  IMPERIO  VESPASIANI  21 

proconsulare  and  the  tribunicia  potestas^  then  generally 
defining  them,  and  as  finally  adding  special  provisions  not 
so  closely  connected  with  the  conferred  offices.  Thus,  the 
first  clause  is  closely  connected  with  the  proconsulare 
imperium  and  the  second  can  be  given  a  consistent  explanation 
only  in  connection  with  the  tribunicia  potestas.  It  is,  after 
all,  very  natural  that  the  powers  conferred  by  the  imperium 
proconsulare  and  tribunicia  potestas  should  be  generally 
defined,  for  these  powers  differ  very  widely  from  those  of  the 
mere  consul  or  proconsul,  and  of  the  tribune.  In  connection 
with  the  former,  the  emperor  had  supreme  power  in  matters  of 
war  and  foreign  polity;  the  latter  gave  him  a  unique  status  in 
relation  to  home  affairs,  and  along  these  lines  they  are  both 
described.  These  would  be  the  essential  part  of  every  Lex  de 
Imperio  passed  in  favor  of  successive  emperors.  This  comes 
dangerously  near  being  a  law  conferring  a  general  authority 
that  is  therein  explained;  and  the  ordinary  way  of  thinking 
about  such  legislation  would  be  to  regard  it  as  a  general 
empowering  measure,  even  when  it  would  technically  be  a  col- 
lection of  separate  prerogatives.  Tacitus,  for  instance,  says  in 
one  place1  that  the  senate  decreed  to  Vespasian  all  the  prerog- 
atives it  was  customary  to  confer  on  the  princeps,  and  then  in 
another,8  speaking  of  the  same  event,  he  says:  "But  on  that 
day  of  the  senate  when  the  house  was  considering  the  imperium 
of  Vespasian."  Again,  touching  the  accession  of  Otho,  he 
says:3  "The  senate  runs  together  and  decrees  to  him  the  tribu- 
nicia potestas,  the  name  of  Augustus,  and  all  the  honors  of  the 
princeps."  And  yet  Tacitus  refers* to  Galba's  holding  comitia 
imperil.  In  these  cases  the  use  of  imperium  is  to  be  explained 
as  carrying  the  general  meaning  I  have  referred  to.  This 
would  be  true,  even  if  one  resorts  to  the  rather  heroic  explana- 
tion that  the  expression  comitia  imperil  is  a  "blosse  Meta- 
pher."5  The  only  other  possible  explanation,  which  Mommsen 
can  not  admit,  since  it  would  be  fatal  to  his  theory  that  the 
imperium  was  excluded  from  the  Lex,  is  that  Tacitus  is  here 

1  Hist.,  IV,  3 :    At  Romae  senatus  cuncta  principibus  solita  Vespasiano  decernit. 

2  Hist.,  IV,  6:    Ceterum  eo  senatus  die  quo  de  imperio  Vespasian!  censebant. 

8  Hist.,  I,  47:    Accurrunt  patres;   decernitur  Othoni  tribunicia  potestas,  et 
nomen  Augustl,  et  omnes  principum  honores. 

4  Hist.,  I,  44:  Sed  Galba  .  .  .  quod  remedium  unicum  rebatur,  comitia  imperil 
transigit. 

8  Staatsrecht,  II,  841,  note  4. 

21 


22  LEX  DE  IMPERIO  VESPASIANI 

thinking  of  the  proconsular  imperium  as  being  just  as 
important  a  part  of  the  power  as  the  tribuniciapotestas,  although 
the  latter  is  the  name  most  often  used  in  this  connection.  But, 
from  the  manner  in  which  Tacitus  uses  the  word,  the  former 
interpretation,  i.e.,  that  imperium  carries  a  general  meaning, 
is  almost  inevitable.  Granting  that  men's  thoughts  had  pre- 
viously turned  a  little  more  to  the  constitutionally  separate 
prerogatives,  we  must  still  feel  it  intrinsically  very  probable 
that  the  conception  of  the  general  power  must  always  have 
existed  in  spite  of  the  specious  forms  of  the  principate.  Nor 
would  it  be  strange  that  this  should  crystallize  in  the  heated 
activity  of  the  year  69,  when  any  day  seemed  likely  to  require 
the  legal  and  constitutional  recognition  of  a  new  emperor. 
Furthermore,  I  regard  it  as  not  impossible  that  with  the  more 
clearly  recognized  character  of  the  imperium  we  should  connect 
the  fact  that  from  the  time  of  Vespasian  the  name  of  Imperator 
ordinarily  attaches  to  the  reigning  monarch  as  a  praenomen. 
Daie  of  the  It  remains  for  me  to  date  the  inscription  and  for  this  we  can 

find  a  very  close  approximation.  The  measure  was  first  passed 
in  the  form  of  a  decree  by  the  senate  as  soon  as  it  received  the 
news  of  the  death  of  Vitellius,1  which  occurred  about  December 
20th,  69  A.D.*  It  was  then  brought  by  a  magistrate  before 
the  comitia,  probably  by  one  of  the  consuls  before  the  comitia 
centuriata.3  Just  how  many  days  elapsed  between  the  two 
stages  we  can  not  state,  owing  to  a  gap  in  the  Acta  Arvalium,4 
which  give  the  interval  as  twelve  days  in  the  case  of  Vitellius 
and  as  seventeen  in  the  case  of  Domitian ;  but  we  shall  prob- 
ably not  err  seriously  in  assuming  a  similar  interval  for 
Vespasian.  Accordingly,  our  Lex  ought  to  have  been  pub- 
lished officially  early  in  January  of  the  year  70. 

>  Cf.  Chambalu,  De  Magistratibus  Flavlorum,  7-9,  where  the  date  is  arrived  at 
by  a  method  entirely  different  from  the  writer's  and  much  more  picturesque. 

»  Cagnat,  op.  c.  179;  Schiller,  I,  398;  Tac.,  Hist.,  Ill,  84  86;  Josephus,  B.  I.,  IV, 
11,  4 ;  Dio  Cassius  LXV,  20-21 ;  Zon,  11, 16;  Oros.  7,  8, 7-9;  Eutrop.  7, 18, 4-6;  Aur,  Viet., 
Caes.,  8,  6;  Aur.  Viet.,  Ep.,  8, 5. 

» Mommsen,  Staatsrecht,  II,  875,  note  1. 

4  Acta  Arvalium,  Henzen,  64-66. 


22 


LEX  DE  IMPERIO  VESPASIANI  23 

BIBLIOGKAPHY  * 

I.     EPIGRAPHICAL 

Acta  Arvalium,  Henzen.     Berlin,  Orelli-Henzen,  Inscriptionum  La- 

1874.  tinarum    Collectio.     Zurich, 

Cagnat,   Cours    d'Epigraphie    la-  1828-56. 

tine.     Paris,  1890.  Rushforth,   Latin  Historical    In- 

Corpus  Inscriptionum  Latinarum.  scriptions.     Oxford,  1893. 

Egbert,  Latin  Inscriptions.     New  Wilmanns,    Exempla    Inscriptio- 

York,  1896.  num  Latinarum.  Berlin,  1873. 

II.  GREEK  AND  LATIN  AUTHORS 

Appianus,  Mendelssohn.  Pomponius,  Digest,  Momm- 

Aurelius  Victor,  Harles.  sen,     in     Corpus     luris 

Cicero,  Muller.  Civilis. 

Dio  Cassius,  Bekker.  Scriptores     Historiae    Au- 

Eutropius,  Dietsch.  gustae,  Peter. 

Gellius,  Hertz.  Strabo,  Meineke. 

Josephus,  Niese.  Suetonius,  De  Vita  Caesa- 

Orosius,  Zangemeister.  rum,  Roth. 

Papinianus,  Digest,  Moriim-  Tacitus,  Annals    and    His- 

sen,  in  Corpus  luris  Civilis.  tories,  Halm. 

Paulus,  Digest,  Mommsen,  Ulpianus,    Digest,    Momm- 

in  Corpus  luris  Civilis.  sen,     in     Corpus     luris 

Philostratus,  Westermann.  Civilis. 

Plinius,  Epistles,  Keil.  Zouaras,  Dindorf. 

III.     LATER  WRITERS 

Abbott,  Roman  Political  Institu-  Auguste  a  Diocletien.     Paris, 

tions.     Boston,  1901.  1884 

Bruns,  Fontes  luris  Romani  An-  Detlefsen,  Das  Pomerium  Roms 
tiqui.      Sixth    edition,    Frei-  und    die     Grenzen    Italiens, 

burg,  1893.  Hermes,     XXI  (     1886),      497 

Cantarelli,    La  Lex   de    Imperio  seq. 

Vespasiani,     Bulletino    com-  Gardthausen,  Augustus  und  seine 

unale    XVIII  (1890),  194  seq.  Zeit.     Leipzig,  1891-96. 

and  235  seq.  Greenidge,   Roman  Public    Life. 

Chambalu,  De  Magistratibus  Fla-  London,  1901. 

viorum.     Bonn,  1882.  Gravina,    De   Ortu  et  Progressu 

Cola    di    Rienzi,    Epistolario  di-,  luris  Civilis.     Venice,  1758. 

A.  Gdbrielli;  Vita  Anonyma  Hirschfeld,  Untersuchungen  auf 
di-,  Re.  dem  Gebiete  der   romischen 

Cramer,  Vespasian.     Jena,  1785.  Verwaltungsgeschichte.   Ber- 

Cuq,  Le  Conseil  des  Empereurs  d'  lin,  1877. 

*  The  Bibliography  could  have  been  enlarged  to  almost  any  extent,  but  I  have 
chosen  to  make  it  less  cumbersome  at  the  natural  expense  of  making  it  less  Impos- 
ing. 

23 


24 


LEX  DE  IMPERIO  VESPASIANI 


Karlowa,  Romische  Rechtsge- 
schichte.  Leipzig,  1885. 

Madvig,  Die  Verfassung  und  Ver- 
waltung  des  romischen 
Staates.  Leipzig,  1881-82. 

Merivale,  History  of  the  Ro- 
mans under  the  Empire- 
London,  1875-76. 

Merlin,  Melanges  d'Archeologie  et 
Histoire,  XXI,  1-2. 

Mispoulet,  Les  Institutions  poli- 
tiques  des  Romains.  Paris, 
1882-83. 

Mommsen,  Staatsrecht.  Third 
edition,  Leipzig,  1887. 

Nissen,  Beitrage  zum  romischen 
Staatsrecht.  Strassburg,  1885. 

Padeletti,  Romische  Rechtsge- 
schichte.  Berlin,  1879. 

Pelham,  On  some  disputed  Points 
connected  with  thelmperium 


of  Augustus  and  his  Succes- 
sors, Journal  of  Philology, 
XVII  (1888),  27seq. 

Pick,  De  Senatus  Consultis  Ro- 
manorum.  Berlin,  1884. 

Rein,  art.  "Lex  Regia,"  in  Pauly's 
Encyclopadie. 

Schiller,  Geschichte  der  romi- 
schen Kaiserzeit.  Gotha, 
1883-87. 

Schiller,  Romischen  Staatsalter- 
thumer,  vol.  IV  of  I.  Muller's 
Handbiicher. 

Stobbe,  Die  Candidati  Caesaris, 
Philologus  XXVII  (1868),  88 
seq.  and  XXVIII  (1869),  648 
seq. 

Walter,  Geschichte  des  romi- 
schen Rechts.  Bonn,  1845. 

Willems,  Droit  public  romain. 
Sixth  edition.  Paris,  1888. 


24 


VITA 

I,  FRED  B.  R.  HELLEMS,  was  born  in  Welland,  Ontario,  on  the  first 
of  September  in  the  year  1872.  From  1883  to  1889  I  attended  the  high 
school  in  that  town.  From  1889  to  1893  I  was  working  in  University 
College,  Toronto,  for  my  bachelor's  degree,  and  was  Fellow  in  Latin  of 
the  same  institution  from  1893  until  the  dismissal  of  the  honored  head 
of  my  department,  Professor  William  Dale,  in  1895.  From  1895  to 
1898  I  was  the  holder  of  a  Fellowship  in  the  University  of  Chicago, 
spending  two  years  in  residence  and  one  in  Italy  and  Greece  as  a 
member  of  the  American  School  for  Classical  Studies  at  Rome. 

At  the  University  of  Toronto  it  was  under  Professors  Maurice 
Hutton  and  William  Dale,  each  an  incorporation  of  his  subject,  that 
most  of  my  work  was  done,  although  I  also  spent  many  pleasant  hours 
with  Mr.  H.  R.  Fairclough  and  Mr.  W.  S.  Milner.  From  Toronto  I 
went  to  the  American  School  for  Classical  Studies  at  Rome,  which  was 
being  guided  through  the  countless  and  insidious  dangers  of  its  initial 
year  by  Professor  W.  G.  Hale  with  a  vigorous  hand  and  a  refined  skill 
that  can  only  be  valued  rightly  by  those  who  actually  saw  the  difficul- 
ties and  the  solutions.  Courses  in  the  School  were  given  by  Professor 
Hale  and  Mr.  A.  L.  Frothingham,  and  in  addition  to  these  I  was 
enabled  by  the  efforts  of  the  Director  of  the  School  to  take  regular 
work  under  Professor  Hiilsen  in  Topography,  Professor  Petersen 
in  Archaeology,  Professor  Mau  in  Pompeian  Antiquities,  Professor 
Milampo  in  Palaeography,  and  Professor  Stevenson  in  Numismatics. 
At  the  University  of  Chicago  I  attended  courses  given  by  Professors 
Hale,  Shorey,  Abbott,  Hendrickson,  Buck,  and  Tarbell.  To  all  of 
these  I  am  deeply  indebted,  although  not  to  each  for  the  same  sort  of 
benefit. 

In  connection  with  this  paper  I  should  like  to  state  that  nobody 
could  appreciate  more  than  I  the  most  patient  and  kindly  efforts  made 
by  Professor  F.  F.  Abbott  of  the  University  of  Chicago  to  save  it  from 
errors.  All  that  accurate  and  scholarly  supervision  could  do,  Professor 
Abbott  has  done;  but  even  his  kindness  could  not  be  expected  to 
bestow  merits  of  a  positive  sort  on  a  thesis  for  which  the  writer  must 
be  solely  responsible. 

Readers  who  have  struggled  with  the  Capricious  proof  sheet  will 
recognize  my  indebtedness  to  Mr.  H.  C.  Newton  of  Cornell  University, 
who  has  favored  me  with  the  aid  of  a  most  accurate  eye  and  mind. 

There  remains  a  debt  of  a  different  sort  to  Mr.  Alfred  T.  DeLury 
of  the  University  of  Toronto  and  Professor  Edward  Capps  of  the  Uni- 
versity of  Chicago.  Inasmuch  as  this  debt  will  be  understood  at  once 
by  those  who  have  been  fortunate  enough  to  enjoy  the  friendship  of 
either  of  these  men  and  cannot  be  explained  to  others,  I  must  content 
myself  with  this  acknowledgment,  as  sincere  as  it  is  vague. 

25 


CLASSICAL  PHILOLOGY 

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